Identifying an employment relationship Flashcards
What are the two ‘contracts’ here?
Contract of service - employer/employee
Contract of services - employer/independent contract
Why does it matter whether or not someone is an employee?
- Case law - general rule, level of protection offered to employees is higher than for other workers.
- Employer can be vicariously liable for torts committed by an employee ie might have to compensate a claimant where the claimant suffers from a tort committed by an employee.
3 key factors to identifying an employment relationshuo?
- determining whether a worker is an employee for the purposes of tort law
- determining whether someone is in a relationship akin to employment, for the purposes of establishing vicarious liability
- determining who might be responsible for an employee’s torts when one employer ‘lends’ an employee to another employer
What’s the key test in working out if parties are in an employer / employee relationship? Case?
Test:
‘multiple factors’ or ‘economic reality’ test
Ready Mixed Concrete v Minister of Pensions [1968]:
Facts: court had to consider the status of X who drove a lorry carrying a concrete mixer. X was responsible for hiring, insuring and running the lorry and was paid by the company on the basis of his mileage. He had no set hours, no instructions on routes or set breaks and was defined in the contract as an independent contractor.
HELD: driver was independent contractor.
What are the three factors to the ‘multiple factors’ or ‘economic reality’ test?
a) Remuneration in exchange for personal service and mutuality of obligations;
b) Control; more control that the employer has, the more likely it will be that the other party is an employee.
c) All other contractual factors consistent with an employment relationship
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Other factors that might point towards an employer / employee relationship are:
a) Tools and equipment being provided by the employer;
b) Tax / PAYE treatment as an employee rather than an independent contractor;
c) The employee being ‘integrated’ into the organisation; and
d) The parties labelling the relationship as an employment relationship – but the labels given to the party (either way) are not conclusive.
Two things to consider re. a relationship akin to employment?
- a party who is clearly carrying on his own independent business is not in a relationship akin to employment - Barclays Bank Plc v Various Claimants [2020] - Barclays used to require employees to undergo medical examination; number of women assaulted. Found that Dr who assaulted was not acting in relationship akin to employment for Barclays - not employed by Barclays, chosen by the bank - despite control, acting on own accord.
- in cases where the tortfeasor is not carrying on his own independent business, the question is whether the relationship is sufficiently analogous to employment to make it fair, just and reasonable to impose vicarious liability.
With regards to (2) FJ&R to impose vicarious liability, what are the 5 things to consider? What’s the case?
Various Claimants v Institute of the Brothers of the Christian Schools (Christian Brothers) [2012] (held vicariously liable for acts of brothers supplied to schools - abused pupils).
a) The employer is more likely to have the means to compensate the claimant than the tortfeasor;
b) The tort has been committed as a result of an activity being undertaken by the tortfeasor on the employer’s behalf;
c) The tortfeasor’s activity is part of the business activity of the employer;
d) By allowing the tortfeasor to carry on the activity, the employer created the risk of the tort being committed; and
e) The tortfeasor is, to a greater or lesser degree, under the control of the employer.
Further case example of FJ&R to impose vicarious liability? (prisoner - catering section)
Cox v Ministry of Justice [2016]: prisoner dropped sack of rice on Mrs Cox (catering manager) - prison held vicariously liable as tortfeasor was carrying out an activity on behalf of the defendant. F,J&R to impose liability.
Two case law examples for ‘lending employees’?
Mersey Docks and Harbour Board v Coggins and Griffiths [1947]: general rule, the employer (X) would remain vicariously liable.
Viasystems Ltd v Thermal Transfer Ltd and Others [2005]: possible for two parties to be vicariously liable for the actions of the same, negligent employee. Dual liability might occur where an employee is lent or transferred to work for another employer and both employers are entitled, and obliged, to control the employee’s actions - equal measure of control.
Re. lending employees, what is emphasis placed on?
Level of control enjoyed by the hirer over the worker and the provision of equipment.
What’s the general rule for when one employer ‘lends’ an employee (X) to another employer?
The first employer remains vicariously liable.
See Mersey Docks and Harbour Board v Coggins and Griffiths. Dual liability can arise, but it is the exception rather than the rule – see Viasystems Ltd v Thermal Transfer Ltd and Others or Christian Brothers.
